Applicant M57/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1439

FEDERAL COURT OF AUSTRALIA

Applicant M57/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1439 MIGRATION – no issue of principle APPLICANT M57/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V333 of 2004 NORTH J 1 SEPTEMBER 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 333 OF 2004

BETWEEN: APPLICANT M57/2002

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE OF ORDER: 1 SEPTEMBER 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. In the event that leave to appeal is necessary such leave is refused. 2. In the event that leave to appeal is unnecessary, the appeal is dismissed. 3. The appellant is to pay the respondent's costs of and incidental to the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 333 OF 2004

BETWEEN: APPLICANT M57/2002

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE: 1 SEPTEMBER 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Before the Court is an appeal from a decision of Connelly FM delivered on 11 March 2004. His Honour refused an application for review of the decision of the Refugee Review Tribunal ('the Tribunal'). On 21 March 2002 the Tribunal decided to affirm the decision of the delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') to refuse to grant the appellant and his wife protection visas. 2 The appellant and his wife are citizens of Sri Lanka and the appellant claims to fear persecution by reason of his political activities in support of the UNP. The Tribunal described the appellant's claims concerning events in 1994 as follows: 'The applicant said at the hearing that he was threatened and that people started to come to his house and throw stones and say that he should not support the UNP and he would be killed if he were to continue to do so. He said that this happened four or five times in the weeks immediately following the election and that he had known some of the people who threatened him. Along with other UNP supporters, the applicant complained to the police who did not look into the incidents. The applicant said at the hearing that the police were friendly with the UNP opponents who were involved. The applicant claims that he wrote petitions about this to the president and to the inspector-general of police. The applicant moved to Ratmalana to stay at his uncle's house, kept a very low profile in politics and returned to his parent's home in December 1996. At the hearing, when I said to the applicant that he had been going to work while living away from home and the people could probably have found him had they been determined to do so, he said that he had worked at three different places during this period. After returning to his family's home in December 1996 he had no further problems until February 1998.' 3 In relation to the 1994 claims, the Tribunal considered the appellant's evidence and accepted that he was harassed in the way he claimed before and after the election, but concluded that: '… had there been a serious intent to harm him, those wishing to do so could have found him. That he was able to avoid harassment and worse by living at his uncle's indicates to me that people were not seeking to harm him. While I can understand that the applicant may have been troubled by what occurred around the election and even sometimes frightened, I do not consider that the harassment which he experienced before and after the 1994 election because of his support for the UNP is of a seriousness so as to constitute persecution, as the term is used in Australian refugee law.' 4 The conclusion concerning the 1994 events was reflected in the ultimate conclusion of the Tribunal that: 'the chance of the applicant coming to serious harm of a kind which could amount to persecution upon return to Sri Lanka, because of his past involvement with the UNP and associated activities, is remote. He was not persecuted in the past and I do not consider that his past involvement would lead him to face serious harm if he were to return. I also consider that there is not more than a remote chance of the applicant facing serious harm if he were to resume his association with politics upon his return.' 5 Before the federal magistrate, counsel for the appellant argued that the Tribunal committed jurisdictional error by misconstruing the definition of persecution. It was contended that the findings made by the Tribunal necessarily amounted to persecution within the meaning of section 91R of the Migration Act 1958 (Cth). The federal magistrate rejected this argument holding that: 'The tribunal provided appropriate reasons for coming to that conclusion. They found that if the threats to harm him had been serious threats, those making the threats could have easily found him and the fact that he avoided harm indicates that those people were not seeking to harm him. I am satisfied that even if the tribunal was wrong to have reached that conclusion it would have amounted to an error of fact, not of law. The finding of fact cannot be interfered with by this court.' 6 The federal magistrate then cited NAMM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1106 in which the full court held that 'faulty logic in fact finding does not constitute jurisdictional error'. 7 In this Court the appellant again contended that the Tribunal had erred in its construction of the definition of persecution and thereby made a jurisdictional error. The appellant filed written submissions elaborating the argument and Mr Whitchurch of counsel appeared for the appellant on the hearing of the appeal. The argument before this Court is therefore the same argument which was placed before the federal magistrate. I agree with the conclusion reached by the federal magistrate for the reasons which he gave. Further, the Tribunal specifically referred to the definition of persecution at the beginning of its decision and discussed the necessary components. The Tribunal particularly emphasised that the harm feared must be 'serious harm'. It is clear that the Tribunal member carefully analysed the facts in order to determine the level of seriousness of the harassment. The evaluation of the evidence in order to determine the level of seriousness is a function exclusively the concern of the Tribunal. 8 In arguing the appeal, Mr Whitchurch moved beyond the grounds of appeal to challenge the Tribunal's findings in relation to later events connected with the 1998 election. The basis for the appellant's challenge was the same, namely that the Tribunal mistakenly failed to apply the proper definition of persecution. This argument does not seem to have been put to the federal magistrate. No attempt was made to explain why an argument not raised at first instance should be permitted on appeal. Nonetheless, as the answer is quite clear it is convenient to deal with the issue now. 9 The primary claim relating to the events in May 1998 concerned a serious assault to the appellant. He claimed that, whilst fishing, four unknown men came and asked him questions about his political involvement and accused him of supporting a political opponent. The appellant denied the involvement but the assailants nonetheless attacked him and he suffered a broken leg and scars to his face. The assailants then said that they were watching his every move and would kill him if he attempted to harm their people. 10 The Tribunal analysed the events in light of the history of the appellant's political involvement and concluded: 'I accept that the applicant was assaulted as he claimed but I am not satisfied that the evidence indicates that his political involvement was the reason for what occurred. I do not believe that the assault is material to what he might face upon return to Sri Lanka.' 11 The central allegation relating to events in 1998 was rejected on the basis that the Tribunal did not consider the events amounted to persecution and therefore that the evidence did not support a Convention reason. Consequently the argument, based on a wrong application of the definition of persecution, is misconceived in relation to the later events. 12 The respondent raised the question of whether the appellant required leave to appeal and pointed to various authorities on this question. As any appeal would be bound to fail I refuse leave to appeal, should it be required. It follows from these reasons that the appeal, were leave not to be required, should be dismissed. I will make orders reflecting the two alternatives. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.